Guzman v. Canada (Minister of Citizenship and Immigration), docket IMM-1515-99

Date: 19991206

Docket: IMM-1515-99

BETWEEN:

RUBEN VALVERDE GUZMAN

LAURA GABRIELA CEDILLO DE VALVERDE

EDGAR EDUARDO VALVERDE CEDILLO

     Applicants

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

REED J.:

[1]      The applicants seek an order setting aside a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board. That decision found that the female applicant ("the applicant") was not a Convention refugee. The claims of the other applicants were dependent on the female applicant's claim. Her claim was based on the likelihood that she would suffer physical harm if she returned to Mexico because of her knowledge of corruption in the Tax Department of the Mexican Government (the Secretaria de Hacienda y Credito publico).

[2]      The Board held that witnesses to a crime who are perceived to be a threat to criminals cannot establish a nexus between the reason they fear harm and the definition of Convention refugee:

[3]      The Board misstated the law when it refused to apply the decision in Reynoso v. Canada (Minister of Citizenship and Immigration) (1996), 107 F.T.R. 220, on the ground that it was inconsistent with other Federal Court decisions, specifically Mousavi-Samani v. (Canada) Minister of Citizenship and Immigration (30 September 1997) IMM-4674-96 (F.C.T.D.), Mehrabani v. (Canada) Minister of Citizenship and Immigration (3 April 1998) IMM-1798-97 (F.C.T.D.), and Diamanama v. (Canada) Minister of Citizenship and Immigration, (23 June 1998) IMM-2288-87 (F.C.T.D.).

[4]      The Board was correct in stating that the Mousavi-Samani, Mehrabani, and Diamanama decisions state that there is no nexus to the Convention definition where the fear of persecution is not related to a political opinion, but arises as a result of being suspected of involvement in criminal activity, or at the hands of criminals as a result of having evidence that certain individuals committed crimes. Those decisions found that the states in question had taken strong action to combat the corruption, and therefore the actions of the applicants could not be said to constitute a challenge to state authority. The Reynoso decision does not conflict with those decisions.

[5]      The Reynoso decision held that when state corruption is so endemic that the state is unable to protect an applicant, then, that person could become a Convention refugee. Also, in Vassiliev v. Canada (Minister of Citizenship and Immigration) (4 July 1997) IMM-3443-96 (F.C.T.D.), the Court held that when criminal activity permeates state action, opposition to the acts of certain criminals may become opposition to the state authorities. In such circumstances, it was held that there is no clear distinction between the anti-criminal and the ideological / political aspects of a claimant"s fear of persecution.

[6]      In Klinko v. Canada (Minister of Citizenship and Immigration) (1998), 148 F.T.R. 69, the Court implicitly adopted the same position when it found that the applicant"s complaint against corruption was not the expression of a political opinion, where the state did not condone corruption. The Court stated "[p]erhaps if the state was taking only token action against corruption it might be found to be complicit with it ...", but since the evidence showed that the state was not engaged in the criminal conduct of corrupt police and customs officials, the applicants" complaint could not be said to be a political opinion.

[7]      In Berrueta v. Canada (Minister of Citizenship and Immigration) (1996), 109 F.T.R. 159, Mr. Justice Wetston returned a decision to the CRDD for redetermination, because the Board had not analyzed the facts to see whether a challenge to the corrupt individuals was in fact a challenge to the authority of the government and whether denunciation of the corruption amounted to the expression of a political opinion:

[8]      Counsel for the respondent cited the decisions of Lara v. Canada (Minister of Citizenship and Immigration) (23 February 1999), IMM-438-98 (F.C.T.D.), Serrano v. Canada (Minister of Citizenship and Immigration), (27 April 1999) IMM-2787-98 (F.C.T.D.), and Rangell Becerra v. Canada (Minister of Citizenship and Immigration) (1998), 153 F.T.R. 275, in support of the submission that those who expose corruption, choose not to participate in corruption, and whistle blowers do not form a particular social group. However, the circumstances of those cases are somewhat different from Reynoso. In Serrano, Lara and Becerra, the applicants were targeted by others, not by government officials. In Serrano it was threats from drug dealers; in Becerra it was threats from a man who owned a company, but also happened to hold political office; and in Lara, although the police did the intimidating, it was at the instance of a private individual motivated by personal vendetta, not a government authority.

[9]      Counsel for the respondent argues that the Board in the present case undertook the type of analysis contemplated by the Berrueta decision. Counsel argues that the Board analyzed the facts and determined that state corruption was not so endemic in Mexico as to justify a conclusion that the state condoned or was complicit in such activity. He argued that in recent years the state has been trying to combat the corruption.

[10]      Counsel for the applicant argued that while the Mexican state may have been paying lip service to the fight against corruption, in fact, nothing has changed. In addition, he does not find in the Board's decision the factual analysis that the decisions cited above indicate is required.

[11]      A careful reading of the decision shows that counsel for the applicants" characterization is correct. The Board did not conduct the required analysis. The decision under review will therefore be set aside and the applicants" application referred back for reconsideration by another panel of the CRDD.

                                 Judge

OTTAWA, ONTARIO

December 6, 1999